§611 Mode and Order of Interrogation and Presentation

• Library: Evidence Restated Deskbook (2021 Ed.)

§611 Mode and Order of Interrogation and Presentation

A. Control by court. A trial court has broad discretion in regard to controlling the mode and order of interrogating witnesses and presenting evidence so as to:

1. make the interrogation and presentation effective for the ascertainment of the truth;

2. avoid needless consumption of time; and

3. protect witnesses from harassment or undue embarrassment.

B. Scope of cross-examination

1. General rule. A witness may be cross-examined on any and all matters in a case, including matters not within the scope of the direct examination, provided that the witness has been sworn and has given some evidence, however formal, trivial, or unimportant.

2. Exceptions

a. Counterclaims or setoffs. A defendant who has pleaded a counterclaim or setoff in a civil case may not cross-examine a plaintiff's witness about it. The defendant may call and examine the witness in the course of the trial as its witness as part of its case-in-chief.

b. Cross-examination of a defendant in a criminal case or the defendant's spouse. Cross-examination of a defendant in a criminal case or cross-examination of the defendant's spouse is limited to matters within a fair purview of their direct examination and matters affecting their credibility.

C. Leading questions

1. On cross-examination. A party normally has the right to ask leading questions on the cross-examination of a witness. But the right may be restricted or forbidden entirely when the witness is biased in favor of the cross-examiner, such as when the witness is an adverse party or a witness who exhibited hostility to a party on direct examination.

2. On direct examination. Leading questions are generally impermissible. But a trial court may, in its discretion, permit leading questions, such as when a witness:

a. is shy, timid, or hesitant;

b. is unwilling or unfriendly;

c. is hostile;

d. has difficulty understanding English;

e. has answered a question and the attorney repeats the answer;

f. is asked about preliminary or formal matters; or

g. has forgotten or is uncertain about a matter and the question is an attempt to refresh the witness's memory.

Notes

A. Control by court

A trial judge is not a mere umpire who should only interfere when needed to decide whether the rules of the game have been violated. State v. Singh, 586 S.W.2d 410 (Mo. App. S.D. 1979).

The function of a judge sitting in a case is to give the litigants an opportunity under the law to have their cases properly adjudicated. He is not a mere moderator between the contending parties. He is a sworn officer, charged with great public duties. In order to establish justice, maintain truth, and prevent wrong, he has a large discretion in the application of rules of practice, and his action in this respect will not be reversed by an appellate court unless it exhibits an abuse of discretion resulting in injustice.

Townsend v. City of Joplin, 123 S.W. 474, 477 (Mo. App. S.D. 1909) (citation omitted).

Accordingly, a trial court has been given broad discretion, subject to reversal for abuse and prejudice, in matters pertaining to the conduct of a trial, Keesee v. Freeman, 772 S.W.2d 663, 666 (Mo. App. W.D. 1989); Gage v. Morse, 933 S.W.2d 410, 422 (Mo. App. S.D. 1996), including decisions that make the interrogation of witnesses and presentation of evidence effective for the ascertainment of truth, avoid needless consumption of time, and protect witnesses from harassment or undue embarrassment.

This includes, but is not limited to, decisions regarding the following:

· Whether to proceed to trial and judgment in the absence of a party or the party's attorney, Sav. Fin. Corp. v. Blair, 280 S.W.2d 675, 679 (Mo. App. S.D. 1955); Brown v. Yettaw, 116 S.W.3d 733, 735 (Mo. App. S.D. 2003)

· The introduction of evidence on direct and cross-examination, White v. Am. Postal Workers Union, St. Louis Local, 579 S.W.2d 671, 675 (Mo. App. E.D. 1979), and the exclusion of evidence, Bine v. Sterling Drug, Inc., 422 S.W.2d 623, 631 (Mo. 1968)

· The regulation of the manner of examination of witnesses, State v. Powell, 318 S.W.3d 297, 302–03 (Mo. App. W.D. 2010); State v. Ross, 680 S.W.2d 213, 219 (Mo. App. W.D. 1984), including the authority to do the following:

- Disallow repetitive and harassing interrogation; limit attacks on general credibility; and preclude attempts to elicit irrelevant, collateral, or stale matters, State v. Brown, 847 S.W.2d 79, 80 (Mo. App. W.D. 1992); State v. Gilmore, 681 S.W.2d 934, 940 (Mo. banc 1984)

- Impose reasonable limits on cross-examination to "avoid prejudice, confusion of the issues, marginally relevant interrogation, undue delay, waste of time, or cumulativeness," State v. Jones, 299 S.W.3d 324, 329 (Mo. App. W.D. 2009)

- Allow questions calling for a narrative answer, State v. Knowles, 946 S.W.2d 791, 795 (Mo. App. W.D. 1997); Frisella v. Reserve Life Ins. Co. of Dallas, Tex., 583 S.W.2d 728, 734 (Mo. App. E.D. 1979)

· Whether to limit the time for a party's presentment of evidence, L.J.B. v. L.W.B., 921 S.W.2d 23, 27 (Mo. App. E.D. 1996); the number of opportunities each party has to question each witness, Philmon v. Baum, 865 S.W.2d 771, 777–78 (Mo. App. W.D. 1993); and how much time a party has to cross-examine a witness, Patton v. Patton, 973 S.W.2d 139, 150–51 (Mo. App. W.D. 1998)

· Whether to fashion means to enable child victims to testify "without being overwhelmed by crippling emotional strain," such as allowing a family member to sit near the child while the child testifies, State v. Pollard, 719 S.W.2d 38, 42 (Mo. App. E.D. 1986); State v. Gollaher, 905 S.W.2d 542, 547 (Mo. App. E.D. 1995), or allowing the child to hold comfort items during the testimony, Powell, 318 S.W.3d at 302–03; State v. Dickson, 337 S.W.3d 733, 742–43 (Mo. App. S.D. 2011), or while in the courtroom viewing the trial after testifying, State v. Holt, 428 S.W.3d 793, 794 (Mo. App. S.D. 2014)—see also the discussion in §601 above (under the heading of "Best interest of child a factor") regarding § 491.725, RSMo 2016, the Child Witness Protection Act. Section 491.725.3(4) and (5) provides "protections" for child witnesses in the form of allowing a child to have a toy, blanket, or similar item in the child's possession and a support person in close proximity to the child.

· "The propriety and prejudicial effect of the conduct, comments, and arguments of counsel," Wartenbe v. Car-Anth Mfg. & Supply Co., 362 S.W.2d 54, 60–61 (Mo. App. E.D. 1962); State v. Oates, 12 S.W.3d 307, 312 (Mo. banc 2000)

· Whether the court should permit introduction of rebuttal proof that could have been presented by the party in its case-in-chief, Peters v. Dodd, 328 S.W.2d 603, 609–10 (Mo. 1959); State v. Lee, 841 S.W.2d 648, 653–54 (Mo. banc 1992); Khoury v. ConAgra Foods, Inc., 368 S.W.3d 189, 196–97 (Mo. App. W.D. 2012) ('"A party cannot, as a matter of right, offer in rebuttal evidence which...